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Reasons for Decision
Premises:Borroloola Inn
Licensee:O’Brien Holdings (Townsville) Pty Ltd
Nominee:Ms Terry O’Brien
Proceeding:Sec 48 Complaint by Ms Linda Purcell and Mr Cliff Lockwood
Heard Before:Mr John Withnall
Date of Hearing:04 to 06 April 2000 in Borroloola
12 April 2000 in Darwin
05 to 08 June 2000 in Borroloola
Date of Decision:08 June 2000
Appearances:Complainants in Person
Mr Ben O’Loughlin, Counsel Assisting the Commission
Mr Patrick Loftus, for the Licensee
The hearing commenced being heard before Chairman Mr Peter Allen, and members Mr John Withnall and Ms Shirley McKerrow. For reasons beyond the control of the Commission Mr Withnall sat alone on the hearing as from 5th June 2000. The decision that follows is therefore the decision of Mr Withnall as a hearing panel of a single member.
Mr Withnall delivered the following decision ex tempore on the morning of 8th June 2000. Some non-substantive editing has taken place for the sake of improved readability, and some gaps in the recording have been filled from Mr Withnall’s notes.
Mr Withnall: I will be unable to hand down anything in writing this morning, Mr Loftus. What will happen is that we'll type up from the transcript what I now deliver. Grammar will be corrected, allusions will be improved, references will be put in, and any formal orders will be included. We'll see how we go. The first thing I think we need to focus on to mention is that this is not an inquiry into the circumstances of the dismissal of Lockwood and Purcell. It's not an inquiry into the fairness or the unfairness of that dismissal. That is, of course, a matter for another jurisdiction and, as I understand it, is in fact at the moment in another jurisdiction. This is a hearing into those aspects of the complaints of Purcell and Lockwood which are regulated by the Licensing Commission.
The motivation of the complainants is only relevant insofar as it may go to their credibility. Mr Loftus does raise the complainants' motivation as a live issue, and on the basis inter alia of questionable or improper motive he urges me to make such general or all encompassing findings adverse to the complainants' credibility as would then have me dismiss the complaints in their entirety, holus-bolus as it were. The fact that a complaint may be motivated by a sense of grievance, or even malice I think, on the part of the complainants, does not necessarily militate against the credibility of their evidence. It does become a relevant circumstance to be factored into the process of weighing the evidence.
Now, there are conflicts in the evidence. There are conflicts between each of the complainants and witnesses on behalf of the licensee. There are some conflicts between the two complainants. Putting that aside for the moment, and putting aside, again for the moment only, Cliff Lockwood's notebook, I think a large part of the evidence of the complainants relating to the management of the hotel can be seen to be rather generalised or impressionistic and has been largely answered by the licensee, through the nominee Mrs O'Brien, partly by specific explanations, partly by the provision of context or broader picture, and indeed partly, in my view, by admissions against interest by Terry O'Brien as to the actuality of at least one of the matters complained of.
An example of what I mean by impressionistic is the evidence of both complainants as to Terry O'Brien's intoxication, which was said to be daily, albeit with special emphasis on the memorable day of 14 November. Both complainants make it clear in their evidence that this was very much a subjective judgment on their part, that there were minimal observable indicators, that you actually have to know Terry to know that she's intoxicated. As late as 11 pm on the contentious 14 November, it was Cliff Lockwood's evidence that, and I quote him:
Just by looking at her you wouldn't have known she'd had a drink.
He then went on:
In looking at Terry most occasions you would swear she had not had a drink.
That's at page 191 of the transcript. There was also the evidence of Sylvia Dean in this respect, the clinic sister, when Terry subsequently attended the clinic to pick up the injured Brendan Willis. She gave the nurse, and I quote now from the nurse herself:
No reason to even imagine that she might be intoxicated.
And this was at the end of a long and certainly eventful day, which the complainants promoted as a prime and specific example of Terry O'Brien's intoxication on the licensed premises. Now, I already indicated to Mr Loftus part way through his case that he need not address this particular issue any further because in the absence of any casually observable outward indicators of intoxication on the part of Terry O'Brien on that occasion and, according to Cliff Lockwood, on most other occasions, it's impossible for the complaint of her intoxication to be upheld. There are simply no empirical observations that I can judge.
The evidence as to underage persons being allowed to remain on the premises was also generalised to a large extent, but both generalised and minimal. Linda Purcell, in oral evidence, simply said that underage persons often came in with their parents, who then had to take them out, so presumably those parents then complied with an instruction from or on behalf of the licensee. Cliff Lockwood, in his written complaint, refers to a young male of 14 years being allowed to remain on premises until he caused trouble, but this particular event did not come out in his evidence, either in his oral evidence or in his affidavit, which is exhibit 9.
In his oral evidence he referred to only one unspecific occasion on which the juvenile concerned had been quickly removed. In his affidavit he says that two of John Lowbeitch's three so called girlfriends were under 18. In his oral evidence, however, he concedes he did not know the age of these girls. And there was no other evidence relevant to a breach of section 106B. When questioned by Mr Loftus as to why he didn't record any other specific instances of underage persons being on the premises, Mr Lockwood said his major concerns were selling out of hours and serving intoxicated patrons.
Both complainants made a point of mentioning in evidence that the nominee - and they're normally quite vigilant - that's the complainants’ word, "vigilant" - in removing underage persons from the premises. I agree with both counsel that there has been insufficient evidence to sustain any finding of a breach of section 106B. The complaint, in its reference to underage persons on the premises, cannot be upheld.
Linda Purcell further complained of the failure of the licensee's management to effectively deal with fighting and fights. In her oral evidence she detailed several incidents, including that of Brian, whose surname I actually forget, but is the Brian who hit his mother on the premises, for which he was barred for a time by the licensee. Mrs O'Brien gave evidence that barring is an effective punishment and she named several other patrons who have been barred in comparatively recent times, and testified that she has no aversion at all to excluding fighting patrons because, of course, she certainly doesn't want them fighting on her premises.
She testified that the incidence of violence has decreased since she took over the hotel. Linda Purcell testified that there were lots of fights while she was there, but Cliff Lockwood testified that there weren't as many fights as he had actually expected. The totality of the evidence on this aspect of the complaint is such that there can be no finding that the licensee has permitted riotous conduct, which is the wording of section 105 - permitting it, or failing to exclude persons for violent quarrelsome or disorderly behaviour as per section 121 of the Act. And I might say that it should be emphasised that no offence is committed by a licensee simply because a fight happens. The offence is permitting it or failing to act sufficiently in excluding the fighting patrons such as to breach section 121.
Now, so far I've not referred to the standard of proof to be adopted, which has been raised with me, because my findings so far - that is in relation to the nominee’s intoxication, underage persons on premises, and permitting or failing to exclude fighting patrons - has been the result of my having no doubt whatsoever as to the insufficiency of the evidence in relation to those specific aspects of the complaint. From this point on though, the decisions on different segments of the complaints may not be free of all or any doubt, and reference should be made at this point to the standard of proof that the Commission adopts in matters of complaint having the potential for serious consequences for a licensee, as is undoubtedly the case here.
The Commission does decide these matters on a civil standard, which is to say on the balance of probabilities. In relation to that standard, both counsel have referred me to Briggenshaw-v- Briggenshaw, and I'm fully in agreement that the standard of proof must be more than an academic or structured weighing of the evidence, such that the perception of a tilt of the scales one way or the other would decide any contested issue of fact. It has to be more than that. Evidence in justification of a finding in matters such as this must be stronger than that.
The Commission, for some time now, has adopted the recommendation of the High Court in Briggenshaw that in matters such as this we should need to be positively persuaded on a given issue. Rather than it just being probable on balance, it needs to be a very strongly probable balance. Positive persuasion is what I've taken to be the appropriate standard of proof in relation to the determination of the remainder of the elements of these complaints.
Echoing Cliff Lockwood's expression of his major concerns - that is, serving intoxicated persons and takeaway out of hours, essentially service out of hours - in my view, these matters are the licensee's major concerns on the evidence in this matter. Counsel assisting has properly and helpfully separated out all the different elements involved in these allegations, but I'll deal with them in a perhaps more bundled up manner. For example, staff book-up will be dealt with as part of my consideration of after hours delivery of beer to the assistant security staff.
Before passing from book-up for the moment, however, there is some allegation of apparent book-up in relation to takeaway cartons of beer to non-staff. It was Mrs O'Brien's evidence that this is explainable in that house guests, which is to say bona fide lodgers, prefer everything to go on to their tab. She also explained that overt or blatant sales of take-away over the counter between 7 and 9 are something she tries to avoid, and so when beer is supplied to in-house guests it is somewhat discreet and it's all taken all of on a final account. This, of course, is a credible explanation of relevant evidence of the complainants and one which I accept. That being so, in my view that particular situation was not the evil intended to be addressed by the book-up condition in the licence.
What can now be described as the old book-up condition was simply not designed to affect the in-house lodger system whereby, naturally, you would normally expect to pay once at the end of your stay for all the services you had received.
The allegation relating to service of intoxicated persons is a little complex. I think it can be compartmented into three. Firstly, the statements and evidence as to general practice at the hotel; secondly, the subversion, in effect, by Errol, Terry and Tammy, of attempts by the complainants to cut patrons off, to put them off tap; and thirdly, the intoxication on premises of specific named persons, apart from the licensee herself. I might say, Mr Loftus, all the way through and continuing, when I refer to the licensee I will be referring to your client personally, the nominee, unless I indicate otherwise.
In any event, section 25 says that that's a matter of law. The nominee is the licensee for purposes of the Act.
As to the first of those categories that I mentioned, which is to say statements of general practice at the hotel, Linda Purcell says in evidence that all the time, day or night, there were always intoxicated people on the premises. Cliff Lockwood tells us that he regularly had to remove sleeping persons from the bars, although I note he says not all of these were drunk. Some woke up “bright as a button”. So not every sleeping person he had to wake up - and I think he puts the number at half a dozen times while he was there - not all of those he considered to be drunk.
There are incidents of people vomiting on themselves, he says, and wetting themselves, although he does add the rider that this was not endemic. Mrs O'Brien, of course, refutes that situation as being the case. The relevant evidence from Linda Purcell does strike me as being somewhat over the top. She said:
All the time, day or night, there were always intoxicated people on the premises.
And it's relevant, I think, that there's nothing remotely like that in her affidavit. That sort of over the topness, if you will excuse the phraseology, only comes through, by surprise almost, in her oral testimony. And it does compare unfavourably with Cliff Lockwood's evidence of the incidents he describes as happening only from time to time. He didn't give any evidence as to any general level of intoxication in the bar all the time. Tammy Pearson and Mrs O'Brien have recollections between them of vomit in the outside toilet, which does happen, and some staff as well as some patrons throwing up at one stage, such that she thought there was something probably going around at that time.
Patrons vomiting and wetting themselves is certainly not an attractive picture, but it's not possible to be positive that all of it, or indeed any of it, can be ascribed without anything further to intoxication. It's a link, or indeed perhaps a leap, that cannot be made without significant further relevant observations as to symptoms and behaviour in any individual instances. I do not accept the evidence of Linda Purcell as to a level of non-stop continuous permanent intoxication at the hotel, and even if I believe that statement on its own terms, such evidence really isn't in any form that can be acted on by the Commission without anything further.
Both complainants admit being instructed by the licensee to be careful, and they both openly concede that they were told to look out for things which would jeopardise what's been referred to as Mrs O'Brien's probation. Cliff Lockwood, in particular, went into considerable detail as to her concerns as she communicated them to him. For me to accept the broad and colourful picture painted by the complainants would necessarily mean accepting that Mrs O'Brien has been treating this Commission and the suspension of licence hanging over her with contempt.
My observation of Mrs O'Brien's reaction in the witness box when she realised from something I said that she may be in just such jeopardy in relation to another aspect convinces me that she would not knowingly put herself in that position.
Moving on to the second category of “intox on premises”, this relates to the complaints of Errol, Terry and Tammy subverting the complainants' attempts to put people off tap. In this respect, the remarks, or the finding, I just made in relation Mrs O'Brien also holds good in my consideration of these allegations. In effect, Mrs O'Brien would be a fool if she knowingly allowed that to happen overtly, and I don't believe that she did. Both complainants give Roy Rossi as the example of a patron seemingly in the privileged position of being allowed by Tammy and Errol to drink on after the complainants asked for him to be put off tap.
It is clear from all the evidence that Mr Rossi has a particular disability - and I'm recalling here, too, Sergeant Compton's evidence in that respect - and Mr Rossi’s disability is such that he can just about always apparently look as if he's drunk. His mannerism and his walking is such that to an outsider who didn't know him he would always look drunk, and that seems pretty clear on all the evidence. Mr Rossi, therefore, is rather a bad example - or rather, an unhelpful example - for the complainants to focus on as a specific incident or personality to whom they are referring in their generalised complaint.
Also, I do accept the evidence of Tammy Pearson. She does credibly explain the impression the complainants say they had of being overridden in relation to the exclusion of intoxicated persons. Firstly, she tells us about the incident relating to a patron called Sonny who, on her evidence, which I accept, is somewhat in the same category as Mr Rossi. He does have a disability, and does look drunk. And when she tells us that when Cliff Lockwood wanted him to be put off tap she explained that he's all right, that she knows him and Mr Lockwood doesn't, I accept that evidence. I accept it as being the prime incident to which Mr Lockwood was referring in his evidence as an example of what he was complaining about in this context, and I accept the explanation of it.
Secondly, though, there is Tammy Pearson’s response to a question by myself. The question was: "Did you see Errol allow back in anybody who had been put off tap or put out?" And she answered: "Yes, a couple of times, until I put a stop to it.” And I must say that having observed her in the witness box, if she decided to put a stop to anything it would be done efficiently, even with some officiousness, I think. And there's no action the Commission can take in relation to Tammy saying that Errol did something like that a couple of times, no action we can take in the complete absence of any specifics as to exactly what did occur in relation to whom and when, and exactly what Errol's subsequent behaviour was, and generally in what circumstances. Mrs Pearson didn't volunteer such detail and my judgment call was not to pursue it myself.